(2001) 115 Lgera 453 Reported Decision : [2001] NSWSC 828 [2001] ACL Rep 260 NSW 7 New South Wales Supreme Court CITATION : Director of Public Prosecutions v La Forest [2001] NSWSC 828 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 11465/01 HEARING DATE(S) : 11 September 2001 JUDGMENT DATE : 11 September 2001 PARTIES : Director of Public Prosecutions Kay Suzanne La Forest JUDGMENT OF : McClellan J LOWER COURT Licensing Court of NSW JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Flood JUDICIAL OFFICER : COUNSEL : P A Johnson QC P R Clay SOLICITORS : S E O'Connor Eddy & Moloney CATCHWORDS : Place of public entertainment - entertainment - licensed premises LEGISLATION CITED : Local Government Act 1993 s 68, s 626(1) Dictionary to the Act - definitions of "place of entertainment", "public entertaiment", "theatre or public hall" Shire of Perth v O'Keefe (1964) 110 CLR 529 CASES CITED : Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138 Foodbarn Pty Ltd v The Solicitor General (1975) 32 LGRA 157 DECISION : See para 15 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN J TUESDAY, 11 SEPTEMBER 2001 11465/01 - DIRECTOR OF PUBLIC PROSECUTIONS v LA FOREST JUDGMENT 1 HIS HONOUR: This is an appeal from a decision of a magistrate dismissing a summons by which the respondent was prosecuted for an alleged breach of s 626(1) of the Local Government Act 1993. That section provides as follows: "1. A person who carries out an activity specified in Part A of the Table to section 68 without having obtained a prior approval of the Council under Part 1 of Chapter 7 required for the carrying out of that activity is guilty of an offence … ." 2 Part A of the table provides that an approval is required in order to use a building "as a place of public entertainment." 3 The dictionary to the Act provides, that "place of public entertainment" means, inter alia, "licensed premises." The dictionary also provides that "premises" are "licensed premises" if they are the subject of a licence under the Liquor Act 1982 and are "used or intended to be used for the purpose of providing entertainment." "Entertainment" is defined to include various activities. In the present case it is accepted by the parties that the musical activity which was occurring at the premises on the relevant day was entertainment. The question is did the conduct of that activity have the consequence that the hotel was being used "for the purpose of providing entertainment." 4 If, on the relevant day, the premises were being used for that purpose, then, being licensed premises, they were being used as a place of public entertainment in addition to being used as an hotel, and a permit was necessary and the offence was complete. 5 The matter was heard by Magistrate Flood, who found that the premises, an hotel, contained an area known as the Balmain Monkey Bar in which at 7.20 pm on the relevant day there was a four piece band performing. Before me the band was described as a jazz band. Its music was amplified. 6 The magistrate held that the definition of "public entertainment" in the Local Government Act 1993 informed the definition of "place of public entertainment". Public entertainment is defined, in the Dictionary to the Act, as follows: "public entertainment: (a) means entertainment to which admission may ordinarily be gained by members of the public on payment of money, or other consideration, as the price or condition of admission and an entertainment does not cease to be a public entertainment merely because: (i) some (but not all) persons may be admitted to the entertainment otherwise than on payment of money, or other consideration, as the price or condition of admission, or (ii) such payment, or other consideration, is demanded as the charge for a meal or other refreshment, or for any other service or thing, before admission to the entertainment is granted or as the charge for the entertainment after admission to the entertainment has been granted, and (b) includes a public meeting." 7 Accordingly the magistrate determined, as a matter of law, that premises could only be described as a "place of public entertainment" if there was a condition of payment of money, or other consideration, before a person was entitled to enjoy the entertainment. He declined to follow the decision of the Chief Licensing Magistrate, in Police v Court 17 September 1998, unreported, where Mr Armati had decided that it was not necessary that a fee be paid before premises could be described as being used "as a place of public entertainment" under the Act. For the reason that no charge was made in the present case, either by payment at the door or by additional charge for a meal or other refreshment, Magistrate Flood determined that the premises were not being "used as a place of public entertainment." So much is plain from his remarks at the bottom at page 3 of his reasons for decision. His approach is confirmed by his finding in the final paragraph of his reasons where he said, rejecting the approach of the Chief Licensing Magistrate: "The broader interpretation would lead to the anomaly that every hotel could be prosecuted for broadcasting Saturday's races or playing quiet music from 2CH nonstop from a radio in the corner and I do not think that that was at all the intention of this legislation, nor do I think that this legislation tended (sic) to pick up other forms of entertainment provided by people who are playing live music and the next step would have to be taken and that is that it is a hotel doing something more than the provision of public entertainment, something over and above what it normally does to provide and create an ambience for its customers and that there would have to be a door charge or some increase in price, a price hike of drinks or a requirement that every patron had to pay for a meal or other refreshment for instance. Yes, I find that the information is not proved and is dismissed." 8 I do not agree with the approach taken by the magistrate. The question in the present case was whether the premises were being "used for the purpose of providing entertainment." If they were, then, because they were licensed under the Liquor Act, they would be "licensed premises" for the purpose of the Local Government Act. If "licensed premises", they were being used as a "place of public entertainment" as defined in the dictionary to the Act and an approval was required. 9 The definition of "public entertainment" is irrelevant to this conclusion. The structure of the definitions is undoubtedly confusing, but I am satisfied that the definition of "public entertainment" does not inform the meaning of "place of public entertainment", save in one respect. The definition of "theatre or public hall" operates by reference to the definition of "public entertainment" and, as a consequence, an admission charge is a relevant element of such a use, unless the activity taking place is a public meeting. 10 However, it does not follow that, merely because some form of entertainment is provided in an hotel, the premises will be licensed premises for the purpose of the Local Government Act. Obviously an activity which provides mere background music, or which otherwise is properly described as incidental to the use as an hotel, will not constitute a "use for the purpose of providing entertainment", which must be a use separate to the use for the purpose of an hotel. If the activity is such that it is properly described as a use of the premises "for the purpose of entertainment", then, although the premises may be being used as an hotel, they will also be relevantly used for the "purpose of providing public entertainment." 11 The question is one of fact. The answer to the question should be guided by consideration of the principles in Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535; Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138, and Foodbarn Pty Limited v The Solicitor-General (1975) 32 LGRA at 157. 12 Care needs to be taken with the application of the decision in Food Barn, for even a minor activity may be a separate and distinct use. It is in the character of the use rather than its intensity which is relevant. 13 I am satisfied that apart from the error I have identified, the general approach taken by the magistrate was correct. As I have indicated, not every hotel which provides some form of music or other amusement for its patrons will be being used for the purpose of providing entertainment. A single violin or guitar, providing background music in a dining room, would not comfortably be described as a use of the premises for the purpose of providing entertainment. Rather, the activity will be an accompaniment to the dining and thus incidental to the use as an hotel. However, if the activity has a character of its own, so that it is proper to describe it as a "use for the purpose of providing entertainment", then the premises will be being used both as an hotel and also for the purpose of "a place of public entertainment" and must be approved to be used for that purpose under the Act. 14 Accordingly, although in the present case, legal error has occurred, it does not follow that it should be concluded that the premises were being used as a place of public entertainment contrary to the Act. That decision should be made by the magistrate after consideration of the facts and the application of the appropriate principles. The matter should be remitted to him for that purpose. 15 I make orders 1 and 2 in the summons and I order the defendant to pay the plaintiff's costs. I direct that, if qualified, the defendant is to have a certificate under the Suitors' Fund Act 1951. ****** Last Modified: 09/27/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.